The Gun Violence Restraining Order: Common-Sense Reform?

In response to the shooting at the Parkland, Florida high school, we’re going to be discussing gun control issues in Springfield again next week. The senselessness of this shooting underscores the need for a rational debate on what steps can be taken to stop them without infringing upon the exercise of an individual’s Second Amendment rights.

We’re going to hear proposals for “common sense reforms” which the proponents will say will prevent future mass killings. But banning certain types of weapons represents a “collective punishment” in which the rights of the law-abiding are restricted with no real evidence that their “reforms” will work.

There’s a common thread that runs through the shootings at Fort Hood, San Bernardino, the Charleston, South Carolina church, the Orlando nightclub, the Sutherland Springs, Texas church, and Parkland school: each happened after federal authorities were given plenty of notice to stop them. What good is “if you see something, say something” if those to whom you say it, who have the authority, don’t do something? We have policies already in place which may have stopped these killings, it was human failure that stood in the way, and no amount of “common sense” gun legislation is going to stand in the way of blithering incompetence.

There are those who’ll say “what about the Las Vegas massacre? There was no advance warning.” You don’t need an AR-15 or a bump stock to inflict mass carnage; just ask Timothy McVeigh.

Others will say “we don’t allow anyone under 16 to drive or under 21 to buy beer, why can’t we put an age restriction on gun purchases”? The reason is that driving and alcohol purchases are privileges, gun ownership is a right.

David French, writing in National Review Online, has written several articles advocating for a “Gun Violence Restraining Order” (GVRO). I’m going to borrow heavily from his articles, because he makes the case for such a tool to take weapons out of the hands of potential killers much better than I. He begins with the following premise:

“There is broad conceptual agreement that regardless of whether you view gun ownership as a right or a privilege, a person can demonstrate through their conduct that they have no business possessing a weapon.”

He then goes on to propose a means by which those unfit to possess firearms can have those weapons denied to them, using due-process procedures and without infringing on the rights of law-abiding gun owners. He points out that:

“Time and again mass shooters give off warning signals. They issue generalized threats. They post disturbing images. They exhibit fascination with mass killings. But before the deadly act itself, there is no clear path to denying them access to guns. Though people can report their concerns to authorities, sometimes those authorities fail or have limited tools to deal with the emerging danger.

What if, however, there was an evidence-based process for temporarily denying a troubled person access to guns? What if this process empowered family members and others close to a potential shooter, allowing them to “do something” after they “see something” and “say something?”

French argues that “when individual citizens are vigilant and individual government officials are not, then it’s time to consider different measures. It’s time to consider rearranging the balance of power…Let’s empower the people who have the most to lose, and let’s place accountability on the lowest possible level of government: the local judges who consistently and regularly adjudicate similar claims in the context of family and criminal law.”

Properly drawn, the GVRO is consistent with and recognizes both the inherent right of self-defense and the inherent right of due process. For such an order to be fully protective of the due process rights of the respondent, French would require:

Limits on those who have standing to seek the order to a narrowly defined class of people (close relatives, those living with the respondent);

A requirement of clear, convincing, and admissible evidence (e.g. sworn statements, screenshots of social-media posts, copies of journal entries) that the respondent is a significant danger to himself or others;

Granting the respondent an opportunity to contest the claims against him or her;

In the event of an emergency and the issuance of an ex parte order (an order granted before the respondent can contest the claims), the requirement that a full hearing be scheduled quickly — preferably within 72 hours; and

Setting a defined period after which the order will lapse unless petitioners can come forward with clear and convincing evidence that it should remain in place.

The FBI has admitted that it didn’t respond to a timely warning from a “person close to Nikolas Cruz.” According the FBI, that person provided “information about Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting.”

In other words, the FBI received exactly the kind of information that would justify granting a GVRO.

As dearly as those who believe that banning certain types of guns will stop mass killings, their fascination with the instrumentality will accomplish nothing. We need to do something to address the evidence that’s right before us.

The GVRO is not a panacea; unfortunately there are those who will find other ways to kill. But it’s something that, had it been in place at the time, may have stopped so many of those killings. Whether you believe that gun ownership is a right or a privilege, the GVRO is something we should take the time to discuss.

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